Wilmington Trust Company v. SFR Investments Pool 1, LLC et al

Filing 43

ORDER Granting 35 Motion to Amend Complaint. Signed by Judge Richard F. Boulware, II on 5/4/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7

WRIGHT, FINLAY & ZAK, LLP
Edgar C. Smith, Esq.
Nevada Bar No. 5506
Rock K. Jung, Esq.
Nevada Bar No. 10906
7785 W. Sahara Ave., Suite 200
Las Vegas, NV, 89117
[phone]; Fax: [phone]
[e-mail]
Attorneys for Plaintiff/Counter-Defendant, Wilmington Trust Company, as Trustee for the Bear
Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2007-1; and CrossDefendants, Nationstar Mortgage, LLC and Mortgage Electronic Registration Systems, Inc.

8
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

9
10
11
12

WILMINGTON TRUST COMPANY, AS
TRUSTEE FOR THE BEAR STEARNS ALTA TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2007-1,

13

Case No.: 2:16-cv-00326-RFB-PAL
PLAINTIFF’S MOTION TO AMEND
COMPLAINT AND CAPTION

Plaintiff,

14
15
16
17
18
19
20
21

vs.
SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company; CLUB AT
MADEIRA CANYON UNIT OWNERS’
ASSOCIATION; DOES I through X, inclusive;
and ROE CORPORATIONS I through X,
inclusive,
Defendants.
SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company,

22
Counter/Cross-Claimant,

23
24
25
26
27
28

vs.
WILMINGTON TRUST COMPANY, AS
TRUSTEE FOR THE BEAR STEARNS ALTA TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2007-1;
NATIONSTAR MORTGAGE, LLC, a
Delaware limited liability company;

Page 1 of 5

1
2
3
4

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware corporation, as nominee beneficiary
for PULTE MORTGAGE, LLC; HAMLET
McNEACE, an individual; and SHAWN
McNEACE, an individual,
Counter/Cross-Defendants.

5
6

MOTION TO AMEND COMPLAINT AND CAPTION

7
8

I.

INTRODUCTION

9

Plaintiff/Counterdefendant Wilmington Trust Company, as Trustee for the Bear Stearns

10

ALT-A Trust, Mortgage Pass-Through Certificates, Series 2007-1, by and through their attorneys

11

of record, Edgar C. Smith, Esq., and Rock K. Jung, Esq., of the law firm of Wright, Finlay &

12

Zak, LLP, hereby moves for leave to amend its Complaint and to amend the caption to reflect the

13

new parties.

14

II.

ARGUMENT

15

Federal Rules of Civil Procedure (“F.R.C.P.”) 15(a)(2), 15(d) and 20 in federal court

16

permits a party to amend its pleading by leave of court and states that “leave shall be freely given

17

when justice so requires.” F.R.C.P. 15(a). The Ninth Circuit has similarly held that the policy of

18

freely granting leave to amend “is to be applied with extreme liberality.” Owens v. Kaiser Found.

19

Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). “In exercising its discretion a court must

20

be guided by the underlying purpose of Rule 15 — to facilitate decision on the merits rather than

21

on the pleadings or technicalities.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

22

1987)). Therefore, a party shall be given leave to amend freely provided there is no existing bad-

23

faith factors such as undue delay, bad faith or dilatory motive on the part of the movant seeking

24

leave. 3 MOORE'S FEDERAL PRACTICE - CIVIL § 15.14 (2011) (analyzing F.R.C.P. 15(a) and

25

stating that “[d]enial of leave to amend is disfavored; and a district judge should grant leave

26

absent a substantial reason to deny”).

27
28

Here, applying these well-established principles, the Court should grant Plaintiff’s
request for leave to amend. Justice requires leave to amend, as the subject HOA and its sales

Page 2 of 5

1

trustee Nevada Association Services, Inc. (“NAS”) proceeded to sell the Property without, inter

2

alia, proper notice and also including improper fees. Further, the Nevada Supreme Court’s recent

3

decision in Horizons at Seven Hills Homeowners Association v. Ikon Holdings, LLC, 132 Nev.

4

Adv. Op. 35 (April 28, 2016) (“Ikon”) and Shadow Wood Homeowners Association, Inc. v. New

5

York Community Bancorp, Inc., 132 Nev. Adv. Op. 5 (Jan. 28, 2016) (“Shadow Wood”)has

6

substantially changed the law of HOA sales, regarding recitals, amounts that comprise the super-

7

priority lien portion, and the pleadings should appropriately be amended to reflect the state of the

8

law after that decision. Plaintiff’s current action against just Defendant SFR INVESTMENTS

9

POOL 1, LLC (“SFR”), and Defendant CLUB AT MADEIRA CANYON UNIT OWNERS’

10

ASSOCIATION (the “HOA”) is untenable as it stands, as colorable claims also exist against the

11

HOA’s sales trustee/agent NAS. In the Shadow Wood case, an end was brought to the past

12

arguments by buyers that relied solely on the recitals in an HOA foreclosure deed to establish

13

quiet title in favor of the buyer. Plus the Shadow Wood decision demonstrates genuine issues of

14

material fact related to fees and costs, commercial reasonableness, and the circumstances

15

surrounding the HOA Sale need to be explored in discovery. Meanwhile, in the Ikon case, the

16

Nevada Supreme court stated that the super-priority lien is ONLY 9 months of dues and nothing

17

more. Thus, the Court soundly rejected the HOA’s argument that they must be able to have

18

collection fees and costs.

19

These recent developments as well as the fact that Plaintiff, HOA and the HOA Trustee

20

are still waiting to have a NRED mediation scheduled, makes vital the allegations in Plaintiff’s

21

Amended Complaint that NAS- failed to properly notify Plaintiff that it was foreclosing on the

22

superpriority portion of its lien, that it further failed to identify or provide the super-priority

23

amount in any of its notices, and even went as far as to refuse providing any payoff information

24

regarding the alleged delinquent HOA account See attached as Exhibit “A”, Plaintiff’s proposed

25

Amended Complaint. Moreover, the Court stated that lenders should have a right to pay off an

26

HOA delinquent assessment lien to protect its interest. Id. at 414 (“U.S. Bank could have paid

27

off the [HOA] lien to avert loss of its security.”).

28

Page 3 of 5

1

As discussed earlier, in evaluating a request for leave to amend, courts examine such

2

factors as undue delay, bad faith, or dilatory motive and whether they are present. Those factors

3

or reasons are simply not present here. Plaintiff’s request to amend the pleadings is timely as

4

only limited discovery has been commenced, settlement negotiations have or will soon be

5

commencing between Plaintiff and SFR, and Plaintiff did not unreasonably delay in bringing this

6

motion as it was first seeking to complete the NRS Ch. 38 mediation. Furthermore, this request

7

is not made in bad faith or for any dilatory motive. To the contrary, Plaintiff is seeking leave to

8

amend to ensure that this case may be evaluated on its merits in light of a recent change in

9

circumstances and in the law. See 3 MOORE'S FEDERAL PRACTICE - CIVIL § 15.14 (discussing

10

F.R.C.P. 15(a) and noting that “a court should allow amendments to ensure that all the issues are

11

before the court”).
In addition, the clear benefits of streamlining adjudication of common facts and related

12
13

issues weigh heavily in favor of permitting amendment, as joining all of the relevant parties and

14

adjudicating all claims in one action will benefit judicial economy, save the parties time and

15

resources, and enable a thorough and conclusive determination of the parties’ contentions.
Plaintiff also requests that the Court amend the caption to reflect the change in parties as

16
17

shown in Plaintiff’s proposed Amended Complaint, attached hereto as Exhibit “A”.

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Page 4 of 5

1

III.

2

For these reasons, Plaintiff respectfully requests leave to amend its Complaint in this

3
4

CONCLUSION

matter, and for an Order of the Court amending the caption to reflect the change in parties.
Dated: September 12, 2016.

5

WRIGHT, FINLAY & ZAK, LLP

6
7

IT IS SO ORDERED:

/s/ Rock K. Jung, Esq.____________________
Rock K. Jung, Esq.
Nevada Bar No. 10906
7785 W. Sahara Ave., Suite 200
Las Vegas, NV 89117
Attorneys for Plaintiff/Counter-Defendant,
Wilmington Trust Company, as Trustee for the Bear
Stearns ALT-A Trust, Mortgage Pass-Through
Certificates, Series 2007-1; and Cross-Defendants,
Nationstar Mortgage, LLC and Mortgage
Electronic Registration Systems, Inc.

8
9
10
11

__________________________
RICHARD F. BOULWARE, II
United States District Judge
DATED this 4th day of May, 2017.

12
13
14
15

CERTIFICATE OF SERVICE

16

I HEREBY CERTIFY that I am an employee of WRIGHT, FINLAY & ZAK, LLP and

17

that service of the foregoing PLAINTIFF’S MOTION TO AMEND COMPLAINT AND

18

CAPTION was made on this 12th day of September, 2016, to all parties and counsel as identified

19

on the CM/ECF System via Electronic Notification, and/or by depositing a true and correct copy

20

in the United States Mail, addressed as follows:

21
22
23

/s/ Allison Zeason___________________________
An Employee of WRIGHT, FINLAY & ZAK, LLP

24
25

EXHIBIT LIST

26
27

1. Proposed Amended Complaint

Exhibit A

28

Page 5 of 5

EXHIBIT A

Proposed First Amended Complaint

EXHIBIT A

EXHIBIT A

1
2
3
4
5
6
7

WRIGHT, FINLAY & ZAK, LLP
Edgar C. Smith, Esq.
Nevada Bar No. 5506
Rock K. Jung, Esq.
Nevada Bar No. 10906
7785 W. Sahara Ave., Suite 200
Las Vegas, NV, 89117
[phone]; Fax: [phone]
[e-mail]
Attorneys for Plaintiff/Counter-Defendant, Wilmington Trust Company, as Trustee for the Bear
Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2007-1; and CrossDefendants, Nationstar Mortgage, LLC and Mortgage Electronic Registration Systems, Inc.

8
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

9
10
11
12

WILMINGTON TRUST COMPANY, AS
TRUSTEE FOR THE BEAR STEARNS ALTA TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2007-1,

13

Case No.: 2:16-cv-00326-RFB-PAL
PLAINTIFF’S FIRST AMENDED
COMPLAINT

Plaintiff,

14
15
16
17
18
19
20
21

vs.
SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company; CLUB AT
MADEIRA CANYON UNIT OWNERS’
ASSOCIATION; DOES I through X, inclusive;
and ROE CORPORATIONS I through X,
inclusive,
Defendants.
SFR INVESTMENTS POOL 1, LLC, a Nevada
limited liability company,

22
Counter/Cross-Claimant,

23
24
25
26
27
28

vs.
WILMINGTON TRUST COMPANY, AS
TRUSTEE FOR THE BEAR STEARNS ALTA TRUST, MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2007-1;
NATIONSTAR MORTGAGE, LLC, a
Delaware limited liability company;

Page 1 of 17

1
2
3
4

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware corporation, as nominee beneficiary
for PULTE MORTGAGE, LLC; HAMLET
McNEACE, an individual; and SHAWN
McNEACE, an individual,
Counter/Cross-Defendants.

5
6
7

COMES NOW Plaintiff/Counter-defendant, Wilmington Trust Company, as Trustee for

8

the Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2007-1 (hereinafter

9

“Plaintiff”), by and through their attorneys of record, Edgar C. Smith, Esq. and Rock K. Jung,

10

Esq., of the law firm of WRIGHT, FINLAY & ZAK, LLP, and hereby submits its First

11

Amended Complaint.
INTRODUCTION

12
13

1.

The real property that is the subject of this civil action consists of a residence

14

commonly known as 2745 King Louis Street, Henderson, Nevada 89044 (Parcel No.190-19-810-

15

122) (hereinafter the “Property”).
JURISDICTION AND VENUE

16
17

2.

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §

18

1332, as Plaintiff is a “citizen of a different States” from all defendants and the amount in

19

controversy exceeds $75,000, exclusive of interest and costs.

20

3.

Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)(1)-(2)

21

because Defendants reside in this district; a substantial part of the events or omissions giving rise

22

to Plaintiff’s claims occurred in this district; and the property that is the subject of this action is

23

situated in this district, in North Las Vegas, Clark County, Nevada.

24

4.

The Court has personal jurisdiction over SFR INVESTMENTS POOL I, LLC

25

(hereinafter “Buyer” or “SFR”) because this lawsuit arises out of and is connected with its

26

purposeful purchase of an interest in real property situated in the County of Clark, State of

27

Nevada, and upon information and belief, SFR is a Nevada limited liability company.

28

Page 2 of 17

1

5.

The Court has personal jurisdiction over MADEIRA CANYON UNIT

2

OWNERS’ ASSOCIATION (hereinafter “HOA”) because this lawsuit arises out of and is

3

connected with the HOA’s foreclosure of real property located in the County of Clark, State of

4

Nevada, and upon information and belief, the HOA is a Nevada non-profit corporation.

5

6.

The Court has personal jurisdiction over NEVADA ASSOCIATION SERVICES,

6

INC. (hereinafter “HOA Trustee” or “NAS”) because this lawsuit arises out of and is connected

7

with the NAS’s acts or omissions in relation to the foreclosure of real property located in the

8

County of Clark, State of Nevada, and upon information and belief, NAS is a Nevada domestic

9

corporation.

10
11
12
13

PARTIES
7.

Plaintiff is a Delaware corporation and authorized to do business in the State of

Nevada.
8.

Plaintiff is now and at all times relevant herein the assigned Beneficiary under the

14

Deed of Trust signed by Hamlet McNeace and Shawn L. McNeace (hereinafter “McNeace”), as

15

husband and wife, recorded on November 1, 2006, (hereinafter “Deed of Trust”), which

16

encumbers the Property and secures a promissory note.

17
18
19
20
21
22

9.

Upon information and belief, SFR is a Nevada limited-liability company. Public

records show SFR is the current owner of record for the Property.
10.

Upon information and belief, the HOA, is a Nevada non-profit corporation

licensed to do business in the state of Nevada.
11.

Upon information and belief, the HOA Trustee, is a Nevada domestic corporation

licensed to do business in the State of Nevada.
GENERAL ALLEGATIONS

23
24

12.

On or about October 31, 2006, McNeace purchased the Property.

25

13.

To purchase the Property, McNeace borrowed $683,528.00 from originating

26

lender Pulte Mortgage, LLC. To obtain the loan, McNeace executed a Note secured by a Deed

27

of Trust recorded on November 1, 2006. The Deed of Trust identified Pulte Mortgage, LLC, as

28

the Lender; Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Plaintiff’s

Page 3 of 17

1

successors and assigns, and Lawyers Title as the Trustee.1

2

14.

On May 5, 2014, a Corporate Assignment of Deed of Trust was recorded against

3

the Property conveying the beneficial interest under the Deed of Trust to Nationstar Mortgage,

4

LLC.2

5
6

15.

Property conveying the beneficial interest under the Deed of Trust to Plaintiff.3

7
8

16.

17.

On October 31, 2012, a Notice of Default and Election to Sell was recorded

against the Property.5

11
12

On August 21, 2012, a Notice of Delinquent Assessment Lien was recorded

against the Property by the HOA Trustee on behalf of the HOA.4

9
10

On June 24, 2014, an Assignment of Deed of Trust was recorded against the

18.

On October 4, 2013, the HOA Trustee recorded a Notice of Foreclosure Sale with

the Clark County Recorder on behalf of the HOA.6

13

19.

Upon information and belief, a non-judicial foreclosure sale is alleged to have

14

occurred on March 28, 2014 (the “HOA Sale”), whereby the HOA conveyed its interest in the

15

Property, if any, to Buyer for the sum of $17,000.00.

16

20.

Public records show that on March 31, 2014, a Foreclosure Deed was recorded by

17
18
19
20
21
22
23
24
25
26
27
28

1

A true and correct copy of the Deed of Trust recorded as Book and Instrument Number
20061101-0004451 with the Clark County Recorder on March 9, 2009, is attached hereto as
Exhibit 1.
2
A true and correct copy of the Corporation Assignment of Deed of Trust recorded as
Book and Instrument Number20090924-0002868 with the Clark County Recorder on September
24, 2009, is attached hereto as Exhibit 2.
3
A true and correct copy of the Assignment of Deed of Trust recorded as Book and
Instrument Number 20140624-0000200 with the Clark County Recorder is attached hereto as
Exhibit 3.
4
A true and correct copy of the Notice of Delinquent Assessment Lien recorded as Book
and Instrument Number 20120821-0002043 is attached hereto as Exhibit 4.
5
A true and correct copy of the Notice of Default and Election to Sell Under Homeowners
Association Lien recorded as Book and Instrument Number 20121031-0001396 with the Clark
County Recorder is attached hereto as Exhibit 5.
6
A true and correct copy of the Notice of Foreclosure Sale recorded with the Clark County
Recorder as Book and Instrument Number 20131004-0001613, is attached hereto as Exhibit 6.

Page 4 of 17

1

which Buyer claims its interest.7

2

21.

None of the aforementioned notices identified above and attached as Exhibits 4-6

3

identified what portion of the claimed lien was for alleged late fees, interest, fines/violations, or

4

collection fees/costs.

5

22.

None of the aforementioned notices identified above and attached as Exhibits 4-6

6

specified what portion of the lien, if any, that the HOA claimed constituted a “super-priority”

7

lien.

8
9
10

23.

specified whether the HOA was foreclosing on the “super-priority” portion of its lien, if any, or
under the non-super-priority portion of the lien.

11
12

None of the aforementioned notices identified above and attached as Exhibits 4-6

24.

None of the aforementioned notices identified above and attached as Exhibits 4-6

provided any notice of a right to cure.

13

25.

A homeowner’s association sale conducted pursuant to NRS Chapter 116 must

14

comply with all notice provisions as stated in NRS 116.31162 through NRS 116.31168 and NRS

15

107.090.

16

26.

A lender or a holder of a beneficial interest in a senior deed of trust, such as

17

Plaintiff, has a right to cure a delinquent homeowner’s association lien in order to protect its

18

interest.

19

27.

Upon information and belief, the HOA and its agent, the HOA Trustee, did not

20

comply with all mailing and noticing requirements stated in NRS 116.31162 through NRS

21

116.31168, or as required by the CC&R’s.

22

28.

A recorded notice of default must “describe the deficiency in payment.”

23

29.

The HOA Sale occurred without notice to Plaintiff, what portion of the lien, if

24

any, that HOA and HOA Trustee claimed constituted a “super-priority” lien.

25
26

30.

The HOA Sale occurred without notice to Plaintiff, whether HOA was foreclosing

on the “super-priority” portion of its lien, if any, or under the non-super-priority portion of the

27
28

7

A true and correct copy of the Foreclosure Deed recorded with the Clark County
Recorder as Book and Instrument Number 20140331-0002267, is attached hereto as Exhibit 7.

Page 5 of 17

1
2
3
4

lien.
31.

The HOA Sale occurred without notice to Plaintiff, of a right to cure the

delinquent assessment and the super-priority lien, if any.
32.

The HOA Sale violated Plaintiff’s rights to due process because Plaintiff was not

5

given proper, adequate notice and the opportunity to cure the deficiency or default in the

6

payment of the HOA’s assessments and the super-priority lien, if any.

7

33.

The HOA Sale was an invalid sale and could not have extinguished Plaintiff’s

8

secured interest because of defects in the notices given to Plaintiff, or its predecessors, agents,

9

servicers or trustees, if any.

10
11
12

34.

Under NRS Chapter 116, a lien under NRS 116.3116(1) can only include costs

and fees that are specifically enumerated in the statute.
35.

A homeowner’s association may only collect as a part of the super priority lien (a)

13

nuisance abatement charges incurred by the association pursuant to NRS 116.310312 and (b)

14

nine months of common assessments which became due prior to the institution of an action to

15

enforce the lien (unless Fannie Mae and Freddie Mac regulations require a shorter period of not

16

less than six months).

17
18
19
20
21

36.

Upon information and belief, the HOA Foreclosure Notices included improper

fees and costs in the amount demanded.
37.

The attorney’s fees and the costs of collecting on a homeowner’s association lien

cannot be included in the super-priority lien.
38.

Upon information and belief, the HOA assessment lien and foreclosure notices

22

included fines, interest, late fees, dues, attorney’s fees, and costs of collection that are not

23

properly included in a super-priority lien under Nevada law and that are not permissible under

24

NRS 116.3102 et seq.

25

39.

The HOA Sale did not comply with NRS 116.3102 et seq. because none of the

26

aforementioned notices, identified above, identified what portion of the claimed lien were for

27

alleged late fees, interest, fines/violations, or collection fees/costs.

28

40.

The HOA Sale is unlawful and void under NRS 116.3102 et seq.

Page 6 of 17

1

41.

The HOA Sale is unlawful and void because the “opt-in” provision in NRS

2

116.3116 does not satisfy Constitutional Due Process safeguards under the 5th and 14th

3

Amendment to the United States Constitution, nor Article 1, Section 8, of the Nevada

4

Constitution, so that the statute is unconstitutional on its face.

5

42.

Alternatively, the HOA Sale is unlawful and void because the statutory scheme

6

set forth in NRS 116.3116, et seq. constitutes a regulatory taking of private property without

7

adequate compensation so the statute is unconstitutional on its face.

8
9
10
11

43.

NRS 116.31162 through NRS 116.31168 do not contain any provision requiring

notice of a foreclosure to the Plaintiff, beneficiary or holder of a first mortgage or deed of trust,
thus violating their constitutional right to due process.
44.

Alternatively, NRS Chapter 116 is unconstitutional on its face as it lacks any

12

express right by the Plaintiff, beneficiary or holder, or their respective trustees, servicers, agents,

13

or representatives, to obtain payoff information for the super-priority portion, if any, of the

14

homeowner’s association lien or the express right to cure the default and protect the Deed of

15

Trust, and it lacks an express obligation for a homeowner’s association or its agents to accept a

16

tendered payoff and release the super-priority portion of the lien.

17
18
19

45.

Alternatively, NRS Chapter 116 is unconstitutional on its face due to vagueness

and ambiguity.
46.

The HOA Sale deprived Plaintiff of its right to due process because the

20

foreclosure notices failed to identify the super-priority amount, or to adequately describe the

21

deficiency in payment, to provide Plaintiff notice of the correct super-priority amount, or to

22

provide a reasonable opportunity for Plaintiff to protect its priority by payment to satisfy that

23

amount.

24

47.

Either the HOA Sale, which violated Plaintiff’s constitutional rights was

25

ineffective to displace Plaintiff’s first position under its Deed of Trust such that Buyer took its

26

interest subject to that Deed of Trust, or the HOA Sale was invalid and must be set aside.

27
28

48.

A homeowner’s association sale must be done in a commercially reasonable

manner.

Page 7 of 17

1

49.

The HOA Sale was not commercially reasonable, and the HOA Sale not done in

2

good faith, in light of the sales price when compared to the debt owed to Plaintiff on the

3

McNeace Loan ($683,342.88) and the fair market value of the property, along with the errors

4

alleged above.

5
6

50.

Upon information and belief, at the time of the HOA Sale, the fair market value of

the Property exceeded $473,166.00.

7

51.

The amount paid at the HOA Sale allegedly totaled $17,000.00.

8

52.

The circumstances of the HOA Sale of the Property breached the HOA’s

9
10
11
12
13
14
15

obligations of good faith under NRS 116.1113 and its duty to act in a commercially reasonable
manner.
53.

The HOA Sale by which Buyer, eventually, took its interest was commercially

unreasonable if it extinguished Plaintiff’s Deed of Trust.
54.

In the alternative, the HOA Sale was an invalid sale and could not have

extinguished Plaintiff’s secured interest because it was not a commercially reasonable sale.
55.

Without providing Plaintiff notice of the correct super-priority amount and a

16

reasonable opportunity to tender payment to satisfy that amount, including the failure to set out

17

the super-priority amount and the failure to adequately describe the deficiency in payment as

18

required by Nevada law, the HOA Sale is commercially unreasonable and deprived Plaintiff of

19

its right to due process.

20

56.

Because the CC&Rs contained a Mortgagee Protection Clause and because

21

Plaintiff was not given proper notice that the HOA intended to foreclose on the super-priority

22

portion of the dues owing, Plaintiff did not know that it had to attend the HOA Sale to protect its

23

security interest.

24

57.

Because the CC&Rs contained a Mortgagee Protection Clause, and because

25

proper notice that the HOA intended to foreclose on the super-priority portion of the dues owing

26

was not given, prospective bidders did not appear for the HOA Sale, making the HOA Sale

27

commercially unreasonable.

28

58.

The circumstances of the HOA Sale of the Property breached the HOA’s and the

Page 8 of 17

1

HOA Trustee’s obligations of good faith under NRS 116.1113 and their duty to act in a

2

commercially reasonable manner.

3

59.

4

property purchaser.

5

60.

6

Plaintiff is informed and believes that SFR was a professional foreclosure sale

The circumstances of the HOA Sale of the Property and their status as a

professional property purchaser mean SFR cannot be deemed a bona fide purchaser for value.

7

61.

Upon information and belief, SFR had actual, constructive or inquiry notice of

8

Plaintiff’s first Deed of Trust, which prevents SFR from being deemed a bona fide purchaser or

9

encumbrancer for value.

10

62.

In the event Plaintiff’s interest in the Property is not reaffirmed nor restored,

11

Plaintiff suffered damages in the amount of the fair market value of the Property or the unpaid

12

balance of the Manzo Loan and Deed of Trust, at the time of the HOA Sale, whichever is greater,

13

as a proximate result of Defendant’s acts and omissions.

14

FIRST CAUSE OF ACTION

15

(Quiet Title/Declaratory Relief versus SFR, HOA, and HOA Trustee)

16
17
18

63.

Plaintiff incorporates and re-alleges all previous paragraphs, as if fully set forth

64.

Pursuant to NRS 30.010 et seq. and NRS 40.010, this Court has the power and

herein.

19

authority to declare Plaintiff’s rights and interests in the Property and to resolve Defendants’

20

adverse claims in the Property.

21

65.

Further, pursuant to NRS 30.010 et seq., this Court has the power and authority to

22

declare the rights and interest of the parties following the acts and omissions of the HOA and

23

HOA Trustee in foreclosing the Property.

24
25
26

66.

Plaintiff’s Deed of Trust is a first secured interest on the Property as intended by

NRS 116.3116(2)(b).
67.

As the current beneficiary under the Deed of Trust and the Plaintiff entitled to

27

enforce the Loan, Plaintiff’s interest still encumbers the Property and retains its first position

28

status in the chain of title for the Property after the HOA Sale and is superior to the interest, if

Page 9 of 17

1

any, acquired by Defendant, or held or claimed by any other successor in interest to any of them,

2

for the reasons alleged herein.

3
4
5

68.

Upon information and belief, Defendant SFR dispute Plaintiff’s claims and assert

priority, so that their claims are adverse to Plaintiff’s claims.
69.

Upon information and belief, the HOA, the HOA Trustee and the fictitious

6

Defendants failed to provide proper, adequate and sufficient notices required by Nevada statutes,

7

the CC&R’s and assure due process to Plaintiff, and therefore the HOA Sale is void and should

8

be set aside or rescinded.

9
10
11

70.

Based on the adverse claims being asserted by the parties, Plaintiff is entitled to a

judicial determination regarding the rights and interests of the respective parties to the case.
71.

For all the reasons set forth, Plaintiff is entitled to a determination from this

12

Court, pursuant to NRS 40.010, that Plaintiff is the beneficiary of a Deed of Trust that still

13

encumbers the Property as of the date of the court’s determination, and that Plaintiff’s rights

14

under the deed of trust are superior in the chain of title to the interest of all Defendants.

15

72.

In the alternative, if it is found under state law that Plaintiff’s interest could have

16

been extinguished by the HOA sale, for all the reasons set forth above and in the Factual

17

Background, Plaintiff is entitled to a determination from this Court, pursuant to NRS 30.010 and

18

NRS 40.010, that the HOA Sale is unlawful and void and conveyed no legitimate interest to

19

Defendant.

20

73.

21

Plaintiff has furthermore been required to retain counsel and is entitled to recover

reasonable attorney’s fees for having brought the underlying action.

22

SECOND CAUSE OF ACTION

23

(Preliminary and Permanent Injunctions versus SFR)

24
25
26
27
28

74.

Plaintiff incorporates by reference the allegations of all previous paragraphs, as if

fully set forth herein.
75.

As set forth above, Defendant may claim an ownership interest in the Property

that is adverse to Plaintiff.
76.

Any sale or transfer of the Property, prior to a judicial determination concerning

Page 10 of 17

1

the respective rights and interests of the parties to the case, may be rendered invalid if Plaintiff’s

2

Deed of Trust still encumbered the Property in first position and was not extinguished by the

3

HOA Sale.

4

77.

Plaintiff has a reasonable probability of success on the merits of the Complaint,

5

for which compensatory damages will not compensate Plaintiff for the irreparable harm of the

6

loss of title to a bona fide purchaser or loss of the first position priority status secured by the

7

Property.

8
9

78.

Plaintiff has no adequate remedy at law due to the uniqueness of the Property

involved in the case.

10

79.

Plaintiff is entitled to a preliminary and permanent injunction prohibiting

11

Defendant, their successors, assigns, and agents from conducting a sale, transfer or encumbrance

12

of the Property if Defendant or its transferee claims or will claim the sale, transfer or

13

encumbrance to be made free and clear of Plaintiff’s Deed of Trust.

14
15

80.

Plaintiff is entitled to a preliminary injunction requiring Defendant to pay all

taxes, insurance and homeowner’s association dues during the pendency of this action.

16

81.

Plaintiff is entitled to a preliminary injunction requiring Defendant to segregate

17

and deposit all rents with the Court or a Court-approved trust account over which Defendant has

18

no control during the pendency of this action.

19

82.

Plaintiff is entitled to a mandatory injunction that the HOA and HOA Trustee be

20

compelled to deliver to the Clerk of the Court and deposit all funds collected at the HOA Sale

21

pending determination by the Court of the validity of the sale and the respective rights of the

22

parties to the sale proceeds.

23
24

83.

Plaintiff has been required to retain counsel to prosecute this action and is entitled

to recover reasonable attorney’s fees to prosecute this action.

25

THIRD CAUSE OF ACTION

26

(Unjust Enrichment versus Defendants)
84.

27
28

Plaintiff incorporates and re-alleges all previous paragraphs, as if fully set forth

herein.

Page 11 of 17

1
2
3
4
5
6
7

85.

Plaintiff has been deprived of the benefit of its secured deed of trust by the actions

of Defendant.
86.

Defendants have benefitted from the unlawful HOA Sale and nature of the real

property.
87.

SFR has benefitted from Plaintiff’s payment of taxes, insurance or homeowner’s

association assessments since the time of the HOA Sale.
88.

Should Plaintiff’s Complaint be successful in quieting title against Defendants,

8

Defendants will have been unjustly enriched by the difference in amount between the price paid

9

at the HOA Sale and the fair value of the Property, together with interest thereon.

10
11
12

89.

Plaintiff will have suffered damages if SFR or the HOA or HOA Trustee are

allowed to retain its interests in the Property and the funds received from the HOA Sale.
90.

Plaintiff will have suffered damages if SFR is allowed to retain its interests in the

13

Property and Plaintiff’s payment of taxes, insurance or homeowner’s association assessments

14

since the time of the HOA Sale.

15

91.

Plaintiff is entitled to general and special damages in excess of $10,000.00.

16

92.

Plaintiff has furthermore been required to retain counsel and is entitled to recover

17

reasonable attorney’s fees for having brought the underlying action.

18

FOURTH CAUSE OF ACTION

19

(Wrongful Foreclosure versus the HOA and the HOA Trustee)

20
21
22

93.

Plaintiff incorporates by reference the allegations of all previous paragraphs, as if

fully set forth herein.
94.

Upon information and belief, no payoff information, including the amount of the

23

alleged super-priority amount, was provided to Plaintiff or to its predecessors-in-interest, prior to

24

the HOA Sale.

25

95.

The HOA and HOA Trustee improperly proceeded with the HOA Sale.

26

96.

The HOA foreclosure sale was wrongfully conducted and completed, and

27

therefore, the Court should set aside the HOA Sale to the extent that it purports to have

28

Page 12 of 17

1

extinguished Plaintiff’s first Deed of Trust and delivered free and clear title of the Property to

2

SFR.

3
4
5

97.

The HOA Sale was not done in accordance with the Nevada statutes, and as such,

the HOA Sale was wrongfully conducted and should be set aside.
98.

The HOA assessment lien and foreclosure notices included improper fees and

6

costs in the amount demanded, and thus, the HOA Sale was wrongfully conducted and should be

7

set aside.

8
9
10
11

99.

As a direct and proximate result of the HOA and HOA Trustee’s wrongful

foreclosure of the Property by the HOA Sale, Plaintiff suffered general and special damages.
100.

Plaintiff has been required to retain counsel to prosecute this action and is entitled

to recover reasonable attorney’s fees to prosecute this action.

12

FIFTH CAUSE OF ACTION

13

(Negligence versus the HOA and HOA Trustee)

14
15
16

101.

Plaintiff incorporates by reference the allegations of all previous paragraphs, as if

fully set forth herein.
102.

The HOA and HOA Trustee owed a duty to Plaintiff and other lienholders to

17

allow Plaintiff or its predecessors-in-interest and their respective agents, servicers or trustees, if

18

any, an opportunity to protect their interest and cure the super-priority lien threatening their

19

security interests.

20

103.

The HOA and HOA Trustee breached their duty by rejecting the tendered super-

21

priority lien amount and naming the incorrect HOA in their notices but yet still proceeding with

22

the HOA Sale on the super-priority lien.

23
24
25
26
27
28

104.

As a direct and proximate result of the HOA and HOA Trustee’s breaches of

their duties, Plaintiff’s security interest has been threatened.
105.

As a direct and proximate result of the HOA and HOA Trustee’s breaches of

their duties, Plaintiff has incurred general and special damages.
106.

If Plaintiff is found to have lost its first security interest in the Property, it was

the direct and proximate result of the HOA and HOA Trustee’s breaches of their duties, and

Page 13 of 17

1
2
3

Plaintiff has thereby suffered general and special damages.
107.

Plaintiff has been required to retain counsel to prosecute this action and is

entitled to recover reasonable attorney’s fees to prosecute this action.

4

SIXTH CAUSE OF ACTION

5

(Negligence Per Se versus the HOA and HOA Trustee)

6
7
8
9
10
11
12
13
14
15
16
17
18
19

108.

Plaintiff incorporates by reference the allegations of all previous paragraphs, as if

fully set forth herein.
109.

The HOA and HOA Trustee breached the statutory duties by rejecting the

tendered super-priority lien amount and naming the incorrect HOA in the notices but yet still
proceeding with the HOA Sale, which SFR claims extinguished Plaintiff’s security interest.
110.

Plaintiff is a member of the class of person whom NRS Chapter 116 is intended

to protect.
111.

The injury that Plaintiff faces – extinguishment of its first position Deed of Trust

– is the type against which NRS Chapter 116 is intended to protect.
112.

As a direct and proximate result of the HOA and HOA Trustee’s breaches of

their statutory duties, Plaintiff’s security interest is threatened.
113.

As a direct and proximate result of the HOA and HOA Trustee’s breaches of

their duties, Plaintiff has incurred general and special damages.
114.

If Plaintiff is found to have lost its first secured interest in the Property, it was

20

the direct and proximate result of the HOA and HOA Trustee’s breaches of their statutory

21

duties, and Plaintiff has thereby suffered general and special damages.

22
23

115.

entitled to recover reasonable attorney’s fees to prosecute this action.

24
25
26
27
28

Plaintiff has been required to retain counsel to prosecute this action and is

PRAYER
Wherefore, Plaintiff prays for judgment against the Defendants, jointly and severally, as
follows:
1.

For a declaration and determination that Plaintiff’s interest is secured against the

Property, and that Plaintiff’s first Deed of Trust was not extinguished by the HOA Sale as

Page 14 of 17

1

Plaintiff’s predecessor-in-interest paid the super-priority portion of the HOA lien;

2
3

2.

interest of SFR, and any and all successors;

4
5

3.

4.

10

5.

For a preliminary injunction that SFR, and its successors, assigns, and agents are

prohibited from conducting a sale or transfer of the Property and representing the sale is free
and clear of the Deed of Trust;

11
12

In the alternative, for a declaration and determination that the HOA Sale was

invalid and conveyed no legitimate interest to SFR;

8
9

For a declaration and determination that the HOA Sale was invalid to the extent

it purports to convey the Property free and clear to SFR;

6
7

For a declaration and determination that Plaintiff’s interest is superior to the

6.

For a preliminary injunction that SFR, and its successors, assigns, and agents pay

all taxes, insurance and homeowner’s association dues during the pendency of this action;

13

7.

For a preliminary injunction that SFR, and its successors, assigns, and agents be

14

required to segregate and deposit all rents with the Court or a Court-approved trust account over

15

which SFR has no control during the pendency of this action;

16

8.

If it is determined that Plaintiff’s Deed of Trust has been extinguished by the

17

HOA Sale, for special damages in the amount of the fair market value of the Property or the

18

unpaid balance of the Manzo Loan and Deed of Trust, at the time of the HOA Sale, whichever

19

is greater;

20

9.

For general and special damages;

21

10.

In the alternative, for restitution;

22

11.

For attorney’s fees;

23

///

24

///

25

///

26

///

27

///

28

///

Page 15 of 17

1

12.

For costs of incurred herein, including post-judgment costs; and

2

13.

For any and all further relief deemed appropriate by this Court.

3

Dated: September 12, 2016.

4

WRIGHT, FINLAY & ZAK, LLP

5
/s/ Rock K. Jung, Esq.____________________
Rock K. Jung, Esq.
Nevada Bar No. 10906
7785 W. Sahara Ave., Suite 200
Las Vegas, NV 89117
Attorneys for Plaintiff/Counter-Defendant,
Wilmington Trust Company, as Trustee for the Bear
Stearns ALT-A Trust, Mortgage Pass-Through
Certificates, Series 2007-1; and Cross-Defendants,
Nationstar Mortgage, LLC and Mortgage
Electronic Registration Systems, Inc.

6
7
8
9
10
11
12
13
14
15

CERTIFICATE OF SERVICE
16
I HEREBY CERTIFY that I am an employee of WRIGHT, FINLAY & ZAK, LLP and
17
that service of the foregoing PLAINTIFF’S FIRST AMENDED COMPLAINT was made on
18

this 12th day of September, 2016, to all parties and counsel as identified on the CM/ECF System

19
via Electronic Notification, and/or by depositing a true and correct copy in the United States
20
Mail, addressed as follows:
21
22
23
24
25

/s/ Allison Zeason___________________________
An Employee of WRIGHT, FINLAY & ZAK, LLP

26
27
28

Page 16 of 17

1
2
3
4
5
6
7
8

EXHIBIT LIST
1. Deed of Trust, Doc. No. 20061101-0004451

Exhibit 1

2. Corporation Assignment of Deed of Trust, Doc. No. 20090924-0002868

Exhibit 2

3. Assignment Deed of Trust, Doc. No. 20140624-0000200

Exhibit 3

4. Notice of Delinquent Assessment Lien, Doc. No. 20120821-0002043

Exhibit 4

5. Notice of Default and Election to Sell, Doc. No. 20121031-0001396

Exhibit 5

6. Notice of Foreclosure Sale, Doc. No. 20131004-0001613

Exhibit 6

7. Foreclosure Deed, Doc. No. 20140331-0002267

Exhibit 7

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Page 17 of 17

Exhibit 1

Deed of Trust, Doc. No. 20061101-0004451

Exhibit 1

Exhibit 1

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 1 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:19 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 2 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:19 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 3 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:19 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 4 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 5 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 6 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 7 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 8 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 9 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 10 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:20 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 11 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 12 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 13 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 14 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 15 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 16 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 17 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 18 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:21 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 19 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:22 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 20 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:22 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 21 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:22 AM

Branch :FLV,User :CON2

CLARK,NV
Document: DOT 2006.1101.4451

Comment:

Page 22 of 22

Station Id :Y5I0

Printed on 8/1/2014 9:19:22 AM

Exhibit 2

Corporation Assignment of DOT, Doc. No.
20090924-0002868

Exhibit 2

Exhibit 2

! " # $#
* +

* 0

(. ( %. &-&

!

&'#'

#% ( #(

)

Exhibit 3

Assignment of Deed of Trust, Doc. No. 20140624-0000200

Exhibit 3

Exhibit 3

! " # $
* +

* 0

#%. - %.

!

&'#'

#% ( #( % )

! "
* +

* 0

#%. - %.

$

!

&'#'

#% ( #( % )

Exhibit 4

Notice of Delinquent Assessment Lien, Doc. No.
20120821-0002043

Exhibit 4

Exhibit 4

lnst #: 20120821 0002043
Fees: $17.00
N/C Fee: $0.00
08/21/2012 09:42:50 AM
Receipt#: 1279105
Requestor:
NORTH AMERICAN TITLE COMPAN
Recorded By: RNS Pgs: 1

DEBBIE CONWAY
CLARK COUNTY RECORDER

APN # 190-19-810-122
# N72035

Accommodation

NOTICE OF DELINQUENT ASSESSMENT LIEN
In accordance with Nevada Revised Statutes and the Association's declaration of Covenants Conditions and
Restrictions (CC&Rs), recorded on May 24,2005, as instrument number 0002413 BK 20050524, of the official
records of Clark County, Nevada, the Club at Madeira Canyon, a planned community has a lien on the following
legally described property.
The property against which the lien is imposed is commonly referred to as 2745 King Louis Street Henderson,
NV 89044 particularly legally described as: PROVENCE CNTRY CLUB PARCEL 1, PLAT BOOK 121, PAGE
93, LOT 216, BLOCK 7 in the County of Clark.
The owner(s) of record as reflected on the public record as oftoday's date is (are):
Hamlet McNeace, Shawn L McNeace
Mailing address( es):
2540 Purple Heather Place Henderson,
2540 Purple Heather Place Henderson,
2540 Purple Heather Place Henderson,
2540 Purple Heather Place Henderson,

NV
NV
NV
NV

89052
89052
89052
89052

*Total amount due as oftoday's date is $2,175.69 .
This amount includes late fees, collection fees and interest in the amount of$709.69
*Additional monies will accrue under this claim at the rate of the claimant's regular assessments or special
assessments, plus permissible late charges, costs of collection and interest, accruing after the date of the notice.
Nevada Association Services, Inc. is a debt collector. Nevada Association Services, Inc. is attempting to
collect a debt. Any information obtained will be used for that purpose.
Dated: August 17,2012

ina, of Nevada Association Services, Inc., as agent for Club at Madeira Canyon, a planned
community
When Recorded Mail To:
Nevada Association Services
TS # N72035
6224 W. Desert Inn Rd, Suite A
Las Vegas, NV 89146
Phone: [phone]
Toll Free: [phone]

&

2

¨

&



¡

1



0

)

(

%

$

"

&

$

'

"

$

&

%

$

#

£

¨

"

¡

§



"

¤



¡

!

§

©

¡






£
§

¨
©

¡







¨






¤
$


5


)


5


$

©
%

(

¨
&

¥

§

¦
$

¥


¤
¤

£
¡

¢
4

¡
¤

3

Exhibit 5

Notice of Default & Election to Sell, Doc. No. 20121031-0001396

Exhibit 5

Exhibit 5

lnst #: 20121 031 0001396
Fees: $18.00
N/C Fee: $0.00
10/31/2012 08:40:51 AM
Receipt#: 1364377
Requestor:
NORTH AMERICAN TITLE SUNSET
Recorded By: JACKSM Pgs: 2

APN# 190-19-810-122
_f)
NAS # N72035
North American Title#
~
Property Address: 2745 King Louis Street

Dq_

So

DEBBIE CONWAY
CLARK COUNTY RECORDER

Accommodation
NOTICE OF DEFAULT AND ELECTION TO SELL UNDER
HOMEOWNERS ASSOCIATION LIEN
IMPORTANT NOTICE

WARNING! IF YOU FAIL TO PAY THEAMOUNT SPECIFIED IN THIS
NOTICE, YOU COULD LOSE YOUR HOME, EVEN IF THE AMOUNT
IS IN DISPUTE!
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS IT
MAY BE SOLD WITHOUT ANY COURT ACTION and you may have the legal right to bring your acco~mt in
good standing by paying all your past due payments plus permitted costs and expenses within the time pennitted
by law for reinstatement of your account. No sale date may be set until ninety (90) days from the date this notice
of default was mailed to you. The date this document was mailed to you appears on this notice.
This amount is $3,643.19 as of October 29,2012 and will increase until your account becomes current.
While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes)
required by your note and deed of trust or mortgage, or as required under your Covenants Conditions and
Restrictions. If you fail to make future payments on the loan, pay taxes on the property, provide insurance on the
property or pay other obligations as required by your note and deed of trust or mortgage, or as required ~mder your
Covenants Conditions and Restrictions, Club at Madeira Canyon, a planned cmmnunity (the Association) may
insist that you do so in order to reinstate your account in good standing. In addition, the Association may require
as a condition to reinstatement that you provide reliable written evidence that you paid all senior liens, property
taxes and hazard insurance premiums.
Upon your request, this office will mail you a written itemization of the entire amount you must pay. You
may not have to pay the entire unpaid portion of your account, even though full payment was demanded, but you
must pay all amounts in default at the time payment is made. However, you and your Association may mutually
agree in writing prior to the foreclosure sale to, among other things, 1) provide additional time in which to cure
the default by transfer of the property or otherwise; 2) establish a schedule of payments in order to cure your
default; or both (1) and (2).
Following the expiration of the time period referred to in the first paragraph of this notice, unless the
obligation being foreclosed upon or a separate written agreement between you and your Association pe1mits a
longer period, you have only the legal right to stop the sale of your prope1ty by paying the entire amount
demanded by your Association.
To find out about the amount you must pay, or arrange for payment to stop the foreclosure, or if your
property is in foreclosure for any other reason, contact: Nevada Association Services, Inc. on behalf of Club at
Madeira Canyon, a planned cmmnunity, 6224 W. Desert Inn Road, Suite A, Las Vegas, NV 89146. The phone
munber is [phone] or toll free at [phone].
If you have any questions, you should contact a lawyer or the Association which maintains the right of
assessment on your property.

$

2

¨

&



¡

1



0

5

6

)

&

"

&

)

%

&

"

$

&

%

$

#

£

¨

"

¡

§



"

¤



¡

!

§

©

¡






£
§

¨
©

¡







¨






¤
$


5


)


5


$

©
%

(

¨
&

¥

§

¦
$

¥


¤
¤

£
¡

¢
4

¡
¤

3

NAS #N72035
Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided
the sale is concluded prior to the conclusion of the foreclosure.

REMEMBER, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT
TAKE PROMPT ACTION.
NOTICE IS HEREBY GIVEN THAT NEVADA ASSOCIATION
SERVICES, INC.
is the duly appointed agent under the previously mentioned Notice of Delinquent Assessment Lien, with the
owner(s) as reflected on said lien being Hamlet McNeace, Shawn L McNeace, dated August 17, 2012, and
recorded on August 21,2012 as instrument number 0002043 Book 20120821 in the official records of Clark
County, Nevada, executed by Club at Madeira Canyon, a planned community, hereby declares that a breach of the
obligation for which the Covenants Conditions and Restrictions, recorded on May 24, 2005, as instrument
number 0002413 BK 20050524, as security has occurred in that the payments have not been made of
homeowner's assessments due from 4/1/2012 and all subsequent homeowner's assessments, monthly or
otherwise, less credits and offsets, plus late charges, interest, trustee's fees and costs, attorney's fees and costs and
Association fees and costs.
That by reason thereof, the Association has deposited with said agent such docwnents as the Covenants
Conditions and Restrictions and documents evidencing the obligations secured thereby, and declares all sums
secured thereby due and payable and elects to cause the property to be sold to satisfy the obligations.
Nevada Association Services, Inc. is a debt collector. Nevada Association Services, Inc. is attempting to
collect a debt. Any infonnation obtained will be used for that purpose.
Nevada Associations Services, Inc., whose address is 6224 W. Desert Inn Road, Suite A, Las Vegas, NV
89146 is authorized by the association to enforce the lien by sale.
Legal_Description: PROVENCE CNTRY CLUB PARCEL 1, PLAT BOOK 121, PAGE 93, LOT 216, BLOCK
7 in the County of Clark
Dated: October 29, 2012

By: Autumn Fesel, ofN. da Association Services, Inc.
on behalf of Club at Madeira Canyon, a planned community
When Recorded Mail To:
Nevada Association Services, Inc.
6224 W. Desert Inn Road, Suite A
Las Vegas, NV 89146
[phone]
[phone]

$

2

¨

$



¡

1



0

5

6

)

&

"

&

)

%

&

"

$

&

%

$

#

£

¨

"

¡

§



"

¤



¡

!

§

©

¡






£
§

¨
©

¡







¨






¤
$


5


)


5


$

©
%

(

¨
&

¥

§

¦
$

¥


¤
¤

£
¡

¢
4

¡
¤

3

Exhibit 6

Notice of Foreclosure Sale, Doc. No. 20131004-0001613

Exhibit 6

Exhibit 6

lnst #:

20131 0040001613

Fe~: $18.00
N/C Fee: $0.00
10/04/2013 11:42:06 AM
Receipt#: 1798777

RECORDING CD:wERPAGE
(Must be typed or printed clearly in BLACK ink only
and avoid printing in the 1" margins of document)

Requ~tor:

TITLE SOLUTIONS, INC.
Recorded By: ECM Pgs: 2

APN#

DEBBIE CONWAY
CLARK COUNTY RECORDER

(11 digit Assessor's Parcel Number may be obtained at:
http://redrock.co.clark.nv.us/assrrealprop/ownr.aspx)

TITLE OF DOCUMENT
(DO NOT Abbreviate)

Notice of Foreclosure Sale

Document Title on cover page must appear EXACTLY as the first page of the
document to be recorded.

RECORDING REQUESTED BY:

Nevada Association Services
Nevada Association Services

RETURN TO: Name

6224 W. Desert Inn Road

Add ress _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
City/State/Zip Las

Vegas, NV 89146

MAIL TAX STATEMENT TO: (Applicable to documents transferring real property)
Name_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Address.__________________________
City/State/Zip_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

This page provides additional information required by NRS 111.312 Sections 1-2.
An additional recording fee of $1.00 will apply.
To print this document properly-do not use page scaling.

$

2

¨

&



¡

1



0

)

&

5

&

"

(

%

%

&

"

)

&

%

$

#

£

¨

"

¡

§



"

¤



¡

!

§

©

¡






£
§

¨
©

¡







¨






¤
$


5


)


5


$

©
%

(

¨
&

¥

§

¦
$

¥


¤
¤

£
¡

¢
4

¡
¤

3

NAS #N72035

APN # 190-19-810-122
Club at Madeira Canyon, a planned community

NOTICE OF FORECLOSURE SALE

WARNING! A SALE OF YOUR PROPERTY IS IMMINENT! UNLESS
YOU PAY THE AMOUNT SPECIFIED IN THIS NOTICE BEFORE
THE SALE DATE, YOU COULD LOSE YOUR HOME, EVEN IF THE
AMOUNT IS IN DISPUTE. YOU MUST ACT BEFORE THE SALE
DATE. IF YOU HAVE ANY QUESTIONS, PLEASE CALL NEVADA
ASSOCIATION SERVICES, INC. AT [phone]. IF YOU NEED
ASSISTANCE, PLEASE CALL THE FORECLOSURE SECTION OF
THE OMBUDSMAN'S OFFICE, NEVADA REAL ESTATE DIVISION,
AT 1-877-829-9907 IMMEDIATELY.
YOU ARE IN DEFAULT UNDER A DELINQUENT ASSESSMENT LIEN, August 17,2012. UNLESS
YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE. IF
YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDINGS AGAINST YOU, YOU
SHOULD CONTACT A LAWYER.
NOTICE IS HEREBY GIVEN THAT on 11/1/2013 at 10:00 am at the front entrance to the Nevada
Association Services, Inc. 6224 West Desert Inn Road, Las Vegas, Nevada, under the power of sale pmsuant to
the terms of those ce1tain covenants conditions and restrictions recorded on May 24, 2005 as instrument
number 0002413 BK 20050524 of official records of Clark County, Nevada Association Services, Inc., as duly
appointed agent under that certain Delinquent Assessment Lien, recorded on August 21, 2012 as document
nmhber 0002043 Book 20120821 of the official records of said county, will sell at public auction to the highest
bidder, for lawful money of the United States, all right, title, and interest in the following commonly known
property known as: 2745 King Louis Street, Henderson, NV 89044. Said property is legally described as:
PROVENCE CNTRY CLUB PARCEL 1, PLAT BOOK 121, PAGE 93, LOT 216, BLOCK 7, official records
of Clark County, Nevada.
The owner(s) of said prope1ty as of the date of the recording of said lien is purported to be: Hamlet McNeace,
Shawn L McNeace
The undersigned agent disclaims any liability for incorrectness of the street address and other common
designations, if any, shown herein. The sale will be made without covenant or waiTanty, expressed or implied
regarding, but not limited to, title or possession, or encumbrances, or obligations to satisfy any secured or
unsecured liens. The total amount ofthe unpaid balance of the obligation secured by the property to be sold
and reasonable estimated costs, expenses and advances at the time of the initial publication of the Notice of
Sale is $7,507.76. Payment must be in cash or a cashier's check drawn on a state or national bank, check drawn
on a state or federal savings and loan association, savings association or savings bank and authorized to do
business in the State of Nevada.. The Notice of Default and Election to Sell the described property was
recorded on 10/31/2012 as instrument number 0001396 Book 20121031 in the official records of Clark County.
Nevada Association Services, Inc. is a debt collector. Nevada Association Services, Inc. is attempting to
collect a debt. Any infonnation obtained will be used for that purpose.
Nevada Association Services, Inc.
6224 W. Desert Inn Road, Suite A

October 2, 20 13

""~~4

When Recorded Mail To:
Nevada Association Services, Inc.
6224 W. Desert Inn Road, Suite A
Las Vegas, NV 89146

~Ji'"'

\

Holl•nd", Agont fo' A_,o,;atioo ru>d =ployoe of
lf1::l:.da Association Services, Inc.

$

2

¨

$



¡

1



0

)

&

5

&

"

(

%

%

&

"

)

&

%

$

#

£

¨

"

¡

§



"

¤



¡

!

§

©

¡






£
§

¨
©

¡







¨






¤
$


5


)


5


$

©
%

(

¨
&

¥

§

¦
$

¥


¤
¤

£
¡

¢
4

¡
¤

3

Exhibit 7

Foreclosure Deed, Doc. No. 20140331-0002267

Exhibit 7

Exhibit 7

-Inst#: 20140331-0002267
Fees: $18.00 N/C Fee: $0.00
RPTI: $2414.85 Ex: #
03/31/2014 12:03:32 PM
Receipt#: 1978053
Requester:
TITLE SOLUTIONS, INC.
Recorded By: RYUD Pgs: 3

DEBBIE CONWAY
CLARK COUNTY RECORDER

Please mail tax statement and
when recorded mail to:
SF R Investments Pool 1, LLC
5030 Paradise Road, B-214
Las Vegas, NV 89119

FORECLOSURE DEED
APN # 190-19-810-122
North Ame1ican Title #38409

NAS #N72035

The undersigned declares:
Nevada Association Services, Inc., herein called agent (for the Club at Madeira Canyon, a
planned conununity), was the duly appointed agent under that certain Notice of Delinquent
Assessment Lien, recorded August 21, 2012 as instnunent number 0002043 Book 20120821, in
Clark County. The previous owner as reflected on said lien is Hamlet McNeace, Shawn L
McNeace. Nevada Association Services, Inc. as agent for Club at Madeira Canyon, a planned
community does hereby grant and convey, but without warranty expressed or implied to: SF R
Investments Pool 1, LLC (herein called grantee), pursuant to NRS 116.31162, 116.31163 and
116.31164, all its right, title and interest in and to that certain property legally described as: .
PROVENCE CNTRY CLUB PARCEL 1, PLAT BOOK 121, PAGE 93, LOT 216, BLOCK 7
Clark County
AGENT STATES THAT:
This conveyance is made pursuant to the powers confen-ed upon agent by Nevada Revised
Statutes, the Club at Madeira Canyon, a planned community governing documents (CC&R's)
and that certain Notice of Delinquent Assessment Lien, described herein. Default occuned as set
forth in a Notice of Default and Election to Sell, recorded on 10/31/2012 as instrnment #
0001396 Book 20121031 which was recorded in the office of the recorder of said county.
Nevada Association Services, Inc. has complied with all requirements of law including, but not
limited to, the elapsing of90 days, mailing of copies of Notice of Delinquent Assessment and
Notice of Default and the posting and publication of the Notice of Sale. Said property was sold
by said agent, on behalf of Club at Madeira Canyon, a planned community at public auction on
3/28/2014, at the place indicated on the Notice of Sale. Grantee being the highest bidder at such
sale, became the purchaser of said property and paid therefore to said agent the amount bid
$17 ,000.00 in lawful money of the United States, or by satisfaction, pro tan to, of the obligations
then secured by the Delinquent Assessment Lien.
Dated: March 28, 2014

. y Elissa Hollander, Agent for Association and Employee of Nevada Association Services

2UGHU 
'RF 19&/'<%3

  RI  

'RFXPHQW 5HWULHYDO  )$676HDUFK Š

STATE OF NEVADA
COUNTY OF CLARK

)
)
On March 28, 2014, before me, M. Blanchard, personally appeared Elissa Hollander personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged that he/she executed the same in his/her authorized capacity,
and that by signing his/her signature on the instniment, the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and seal.
(Seal)

(Signature)

M. BLANCHARD
NOTARY PUBLIC
STATE OF NEVADA
My Commlasion Expires: 11 ·5-2017
Cei1iflcate No: 09-11646-1

2UGHU 
'RF 19&/'<%3

  RI  

'RFXPHQW 5HWULHYDO  )$676HDUFK Š

STATE OF NEVADA
DECLARATION OF VALUE
1. Assessor Parcel Number(s)

a. 190-19-810-122
b. _____________________
c. _______________________
d. - - - - - - - - - - - - - - - - - - -

2. Type of Property:
FOR RECORDERS OPTIONAL USE ONLY
a.
Vacant Land
b.~ Single Fam. Res.
Book_ _ _ _ _ _ _ Page: _ _ _ __
2-4 Plex
c.
Condo/Twnhse d.
f.
Comm'l/Ind'I
e.
Apt. Bldg
Date of Recording:---------Notes:
h.
Mobile Home
g.
Agricultural
Other
3.a. Total Value/Sales Price of Property
$_1:..:7'-1..:::0-=0-=0.:.:..0::.:0=----------------b. Deed in Lieu of Foreclosure Only (value of property·_,(~--------------"-c. Transfer Tax Value:
$ ....:4=--=-7-=3:.L-:-16::...6::::.:·:..::0-=0-----------d. Real Property Transfer Tax Due
$ _2---'",4_1_4_.8_5
_____________
4. If Exemption Claimed:
a. Transfer Tax Exemption per NRS 375.090, Section_ __
b. Explain Reason for E x e m p t i o n : - - - - - - - - - - - - - - - - - - - - - 5. Partial Interest: Percentage being transferred: jQQ___ %
The undersigned declares and aclmowledges, under penalty of perjury, pursuant to NRS 375.060
and NRS 375.110, that the information provided is correct to the best of their information and belief,
and can be supported by documentation if called upon to substantiate the infonnation provided herein.
Furthermore, the parties agree that disallowance of any claimed exemption, or other determination of
additional tax due, may result in a penalty of 10% of the tax due plus interest at 1% per month. Pursuant
to NRS 375.030, the Buyer and Seller shall be jointly and srrally liable for any additional amount owed .

Signatm~ ~~paoity: NAS Employee/Agent for HOA

Signature

Capacity:------------

SELLER (GRANTOR) INFORMATION
(REQUIRED)
Print Name: Nevada Association Services
Address:s224 W. pesert Inn Road
City: Las Vegas
State: NV
Zip: 89146

BUYER (GRANTEE) INFORMATlON
(REQUIRED)
Print Name: S F R Investments Pool 1, LLC
Address: 5030 Paradise Road, B-214
City: Las Vegas
State: NV
Zip: 89119

Zip:

C/~7f0

AS A PUBLIC RECORD THIS FORM MAY BE RECORDED/MICROFILMED

2UGHU 
'RF 19&/'<%3

  RI  

'RFXPHQW 5HWULHYDO  )$676HDUFK Š